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Tuesday, 29 May 1973
Page: 2793


Mr N H BOWEN (PARRAMATTA, NEW SOUTH WALES) - This now will be a cognate debate on these 3 Bills. The first Bill is the Australian Capital Territory Representation (House of Representatives) Bill which, if passed, will provide for an additional member for the Australian Capital Territory. It makes no extra provision for the Northern Territory. The second Bill is the Senate (Representation of Territories) Bill which, if passed and if held to be legally valid, will provide for 2 territorial senators for the Australian Capital Terirtory and 2 territorial senators for the Northern Territory. The third Bill, the Representation Bill, is a machinery measure designed to prevent territorial senators from being counted when calculating the number of members of the House of Representatives under section 24 of the Constitution. Of course, if the second Bill, which provides for senators, is not passed the third Bill becomes unnecessary.

I deal, firstly, with the Australian Capital Territory Representation (House of Representatives) Bill which provides for an additional member for the Australian Capital Territory. The Opposition does not oppose this Bill. Clause 5 provides that the representation of the Territory in the House of Representatives shall be by 2 elected members. Clause 8 provides the way in which the Distribution Committee will be appointed and states that it shall consist of the Chief Electoral Officer, the Surveyor-General and another member. Clause 10 provides for the division of the Territory into 2 electoral divisions and provides also that in making that division the Distribution Committee shall give consideration to certain guidelines and to a quota from which the Committee shall not depart to a greater extent than one-tenth more or onetenth less. I shall come back to clause 10 at a later stage because it raises a slight difficulty in that it differs from those guidelines which apply to electorates generally and the Opposition believes that, so far as is practicable, there should be consistency between the guidelines which apply in the Australian Capital Territory and those which apply in other divisions throughout the Commonwealth of Australia. In clause 17 there is provision for filling casual vacancies. Clause 20 contains the general provision that at the time of each general election of members of the House of Representatives an election of members for the Territory is to be held.

We on this side of the House already have agreed in principle to representation of the people of the Australian Capital Territory in the House of Representatives. We have agreed to this in relation to the existing member, the Minister for the Capital Territory (Mr Enderby), who is sitting in the House. We believe that the people of the Territory are entitled to have their voice heard in the House of Representatives. It was my Party which in 1959 widened the voting power of the member for the Territory and in 1966 introduced legislation which ensured that he had the right to vote on any matter coming before the House. In 1966 the number of electors enrolled in the Australian Capital Territory was 48,127, which the then Government con sidered justified his being a full member. Today there are 85,282 electors. If they are divided into 2 electorates, each of them will consist of 42,000 to 43,000 electors. This is rather small by Australian standards; but, as the Minister for Services and Property (Mr Daly) pointed out in his second reading speech, the Territory has a rapidly growing population and it is estimated that by December 1975 enrolments will exceed 120,000. So, if the present Parliaments runs its course until that time, each division will have an enrolment of the order of 60,000. In these circumstances the Opposition believes that the Bill will give fair representation to the Territory.

The Minister in his second reading speech made much of the argument that the pressures upon the local member are very great because the Australian Capital Territory has no mayor, no local council and no State politicians to look after the people. However, let me assure the Minister for the Capital Territory that, if a mayor or a local council or a local State member were in the Australian Capital Territory and they happened to be. of a different political persuasion from the Minister, it could prove to be a mixed blessing and he would find that he was subjected to additional pressures of a different kind about which, it seems, he has not even heard. It reaches its culmination when the local mayor or member ends by running for election against him. However, the present member for the Australian Capital Territory (Mr Enderby) does not appreciate how well off he is. The people of Canberra, it must be remembered, have a local advisory council, a National Capital Development Commission and a joint standing committee of the Federal Parliament, all concerned with their interests and a high proportion of the public servants who reside in the Australian Capital Territory have the ear of Ministers controlling policy and the expenditure of money.

I can assure the honourable member for the Australian Capital Territory that most of the people of Australia would not easily be persuaded that the paucity of their representation in the Parliament has led to the Australian Capital Territory being a deprived area compared with the rest of Australia. Nevertheless, we do believe that it is right that the increase in population should in the circumstances at present existing, carry the right to an additional representative. We take this view as a matter of principle. There may be some who will say that, notwithstanding the fact that my Party has put up first class candidates for the Territory, the scale of their rejection by the Territory means that we are presenting the Labor Government with an additional seat. As to whether that should affect our attitude or not, 1 make no comment. Perhaps I may be permitted to add that the Territory is a particularly knowledgeable and well educated electorate and contains those who are public servants and work with my friends and colleagues who now occupy the Government benches. I am sure they will come to know and appreciate them as well as we know and appreciate them and that the electorate is likely to see even more clearly in the future the fine quality of our candidates.

I turn now to the Senate (Representation of Territories) Bill which provides for 2 senators in the Australian Capital Territory and 2 senators in the Northern Territory. This Bill raises quite different considerations. It raises questions of principle, of great political and legal complexity and involves far reaching consequences. The Minister for Services and Property (Mr Daly) was not exaggerating when he said in his second reading speech that this Bill, if passed, would be an historic Bill. It certainly would be. It would not simply provide representatives of the Territory in the Senate, as section 122 of the Constitution contemplates; it would also provide territorial senators who, by reason of the powers conferred on them by this Bill, would be taken into account in constituting a quorum in the Senate and in voting as to whether a resolution was carried by a majority of votes in the Senate. In this respect, that substantially affects Part II of the Constitution which constitutes the Senate of the Parliament.

Our Constitution is not merely an Act of Parliament - a basic law. It is also a compact between the Commonwealth and the States. It is a compact in which legislative powers are distributed between the Commonwealth and the States and in this compact the Senate is established as the States' House. Each State, regardless of size and population, has an equal number of senators. At present, of course, they have 10 each. The Constitution compact itself provides in section 128 for the means by which that compact is to be changed and it is part of the compact that alterations must have the approval not only of the Parliament and later of a majority of the people but also of a majority of the people in a majority of the States.

It is a nice legal question whether the power given by section 122 of the Constitution to give representation to Territories will allow of the appointment of a person who actually becomes a voting senator and one who is counted in making a quorum. What is said in section 122 is that representation may be allowed to the extent and on the terms the Parliament thinks fit. Was this intended to refer rather to the extent of representation - for example, the number of representatives - and the terms of representation in the sense in which one refers to the manner of their appointment or election or is it without express mention, a way of altering earlier sections in Part II of the Constitution? I think particularly of sections 22 and 23, if not 24. In fact, if the present Bill is valid, it would rest within the power of this Parliament not only to allow separate Senate representation for the various islands such as Norfolk Island, Christmas Island and Cocos (Keeling) Island - maybe we would not do that, but maybe we could - but it would also permit us to provide that the Australian Capital Territory and the Northern Territory were entitled to have 3 senators or 5 senators or 10 senators each, according to what was considered at the time to be a fair representation according to the position of the Territory. It might be thought that they ought to be put on an equal footing with the States and be given 10 each or an odd number which, of course, would alter the balance of power in the Senate.

There is of course no constitutional bar to a change in the method of election to the Senate. A government which gained control of the Senate could, as has been done before, change the method of electing senators. It could change it from the present system of proportional representation to some other system. But even while the system of proportional representation remains in force as the way of voting for the Senate, this Bill could have the effect of passing the determination of the balance of power in the Senate to the Territories. One feature of this Bill, as I said, is that while Territory senators are to be counted for forming a quorum and while they have a vote, so that they are in this sense full senators, they are still to have a term which coincides not with that of other senators - 6 years - but a term which coincides with that of members of the lower House. They are to run for election always at elections held for the House of Representatives and clearly only on House of Representatives issues. I am not opposed in principle to the alteration of the terms for which senators are elected. I would not oppose a proposal such as was put forward in the report of the Joint Standing Committee on the Constitution in 1959 to bring the Senate elections into line with the House of Representatives elections by making senators have, say, 2 consecutive Representatives terms as their term of office. There are considerable difficulties in bringing such a proposal into effect because of the phasing out of senators with fixed terms who retire at intervals and the proposals put forward in the Committee report of 1959 in fact is unworkable. However, while I was Attorney-General, I sought to devise a scheme by which this could be done and I presented a paper in which, with some variation of what had been proposed in 1959 by the Committee, a scheme was propounded which would make it possible for senators to be elected for about 6 years - 2 successive House of Representatives terms - still being elected in succession, overlapping each other, and so that always, the elections for the Senate and the House of Representatives would be synchronised.

But what has happened with this Bill is not that the terms of senators are going to be altered but only that the terms of territorial senators are going to correspond with those of the House of Representatives. They are going to hold office for only 3 years or less, as do members of the House of Representatives. Their election will be at a House of Representatives election in which the issues are different. As I have said, they could control the balance of power. This is not the right way to give representation in the Senate to the Territories. If this Bill is passed and the Government gains control of both Houses of this Parliament there will be nothing to prevent the Government from increasing the number of what might be called second class or short term senators. They hold office while the lower House continues and their number could be increased simply by passing a law through both Houses.

This presents special problems. Taking the last 3 House of Representatives election figures for the Australian Capital Territory as a basis it is clear that, on one occasion cer tainly and on the last 2 occasions probably, on distribution of preferences they would have produced 2 Senate representatives from one side of the House. At present there is no representation of the Territories in the Senate. It is suggested that this method of appointing 2 senators for the short term coming after the House of Representatives election and having 2 senators possibly carrying the balance of power in the States chamber should not be put into effect before the States have had an opportunity, as the Constitution really contemplates, of passing their opinion on the matter.

At present the Australian Capital Territory has 85,282 electors; the Northern Territory has 31,894 electors. It is impossible to suggest that these small numbers of electors are such that it is a matter of urgency that each set of people should have representation of 2 senators. Many would consider that 2 senators for the Northern Territory, for nearly 32,000 people, or one senator for between 15,000 and 16,000 people, is excessive. It is clearly a matter which is not urgent and should be much more carefully considered. It is a matter in which the States as parties to the federal compact have a vital interest. A constitutional conference of the Commonwealth and the States is fixed for September next. Clearly this matter should be deferred and brought before that conference. I believe that it would be ridiculous to suggest that this Bill is so urgent that it must go through this Parliament before September. If it is pressed, it can lead one only to suspect that it is part of the plan which can now be seen to be emerging in such Bills as the Grants Commission Bill and the earlier Electoral Bill to take rights and powers away from the States, often by indirect means, and to introduce measures designed to alter the electoral system and to secure maintenance of the present Government in office for an indefinite period. The Opposition will oppose this Bill.

I come now to the third of the 3 Bills - the Representation Bill. I repeat that if the Senate (Representation of Territories) Bill is defeated, this Bill becomes unnecessary. However, I believe I should make some remarks about it because it presents a strange problem. The Minister for Services and Property (Mr Daly) said in his second reading speech:

The Government's legal advice is that section 24 of the Constitution does not have application in relation to senators who may, be provided for a territory under the provisions of section 122 of the Constitution. In other words, the requirement contained in section 24 for the number of members of the House of Representatives to be as nearly as practicable twice the number of senators does not relate to territory members or senators provided under section 122 of the Constitution. Furthermore, 'the people of the Commonwealth' in the context of section 24 aTe the people of the States.

In other words, he thinks that the people of the Territories are not people of the Commonwealth. Leaving on one side whether the people of the Australian Capital Territory would be rather surprised to find that they were not people of the Commonwealth, the question arises as to the true character of these senators. Section 24 of the Constitution relates to the number of members of the House of Representatives. It states: - and the number of such members shall be, as nearly as practicable, twice the number of the senators.

It depends what the word 'senators' means in the Constitution, whether it means the men who will be appointed under this legislation will be senators or not. Nothing which can be put in an Act of this Parliament will change the wording of the Constitution. The Constitution can be changed only by amending it. The question under the Constitution is: Are they senators or not? Section 22 of the Constitution provides:

Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers.

It provides that one-third of the senators present shall constitute a quorum. This Bill provides that territorial senators are to be senators for the purposes of section 22 of the Constitution but the words do not vary in the Constitution. They remain the same. If a senator according to section 22 can constitute a quorum because be is a senator within the meaning of the Constitution he remains a senator under section 23 or section 24. The same word does not change its meaning from section to section. Section 23 of the Constitution provides, in part:

Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote.

Who are the senators? The Constitution has a meaning and it does not change. Does it include territorial senators? If not, this Bill cannot make it do so. If it does, and they aTe senators, they can vote and be counted in the majority. Either they are senators for the purpose of a quorum and senators for the purpose of voting in the majority - in which case they must be senators for the purpose of section 24 of the Constitution - or they are not senators for the purpose of any section. The strange thing is that the machinery for setting the quota for the House of Representatives - which is covered by this Bill - carries out the provisions of this Bill.

This Bill provides that in fixing the quota for the House of Representatives Bill the territorial senators are to be disregarded. But unfortunately, if they are senators, if they can vote and can be part of a quorum, you cannot by excluding them from the machinery make nonsense of the Constitution. The Constitution can be changed only by amending it. I flag this problem for the Minister. I have read that he has had legal advice, and I hesitate. I do no more than raise the problem. I am not arguing because I do not like to differ with opinions which have not been made available to me. The Minister has not given us the benefit of the written advice - I presume that it is written - which is available to him and has led him to think that they can be senators for one section of the Constitution and not for another.

I will be most interested to see the opinion. This is a problem which confronts us in this House in relation to the Representation Bill. Taking the Bills together, as I said before, my Party is very conscious of the need for adequate representation of both Territories in the House. It has taken forward steps in the past to make this representation effective. It has widened the voting power of the members for the Northern Territory and the Australian Capital Territory in the House of Representatives. It is conscious of that and it will not oppose the addition of a member of the House of Representatives from the Australian Capital Territory. We will agree to having one member added and will take our chances on what the answer of the electorate will be. But as a matter of principle we object to the creation of this curious animal, the territorial senator, who is a senator for the purposes of a quorum, a senator for the purposes of voting but not a senator for the purpose of determining the quota for the House of Representatives. We oppose that Bill and the third Bill.







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